And to be precise; as I have determined, "the bone of contention is not whether the plane can be taken out for take-off or not. Where there is a safety hazard, the aircraft is not taken out for flight. The question is whether proper maintenance of the aircraft prior to the accident would have prevented or reduced the intensity of the impact, and consequently the repair time or the need for spare parts, and what spare parts are available - this point has not been proven before me... The question is not whether the plane could have taken off, but whether the defendant should have anticipated this and prevented it from happening by preparing in advance. Where the answer to this is in the affirmative, then it must bear responsibility for its failure to meet the test of expectations."
As stated in the Berger case, an exceptional circumstance is only if it is not inherent in the airline's normal activity and is not under the control of the company, when within the framework of the exemption an "objective test" was examined, i.e., whether a reasonable airline could have foreseen the circumstances that led to the cancellation of the flight, when "not every technical malfunction and not every failure to find a replacement aircraft constitute special circumstances" (ibid., and the references there). If the legislature had viewed a technical malfunction as a special circumstance, then it would have explicitly stated it in the law, as it did in relation to strikes and the fear of desecration of the Sabbath (see and compare: Case 14678-03-13 Eidelman v. Nethur-Unittel Missair Aviation and Tourism in a Tax Appeal (October 13, 2013); Small Claim 32988-10-12 Gasco v. Arkia Israeli Airlines in Tax Appeal (March 22, 2013). As I ruled in the case of Shimron v. El Al (Small Claim 30376-09-22) where the defendant claimed an exemption from the payment of statutory compensation due to a "wild" strike that it did not anticipate - where it is a strike or a protected strike, then the burden imposed on the airlines to prove that it is covered under the reservation set out in section 6(e)(2) is more reduced, in such a way that it is even possible to suffice with the affidavits of the representatives of the defendant companies, Articles, e-mails, etc., in order to prove the existence of such a reservation. On the other hand, when it comes to a strike or a strike that is not protected, the restriction enshrined in section 6(e)(2) does not apply in this case, and then the required burden is heavier, in such a way that in these cases the airlines can try to prove that the restriction set out in section 6(e)(1) of the Law (the more general exception) is met in their case. In other words, it is necessary to prove that the specific flight was canceled due to those special circumstances that were beyond their control, and even if it did everything in its power in the matter, it would not have been possible to prevent the cancellation of the flight in the circumstances. In other words, more well-founded evidence is needed in order to prove this limitation, and most of the courts do not tend to accept arguments relating to this limitation easily, unless they are presented with evidence that the airline did everything in its power to prevent the occurrence of the circumstances, but could not prevent them. As I ruled on the same matter, a strike is generally a surprise to require the use of pressure measures, but it cannot be said that it is not expected that there should be a contingency plan for such situations, all the more so where this is not the first strike of the defendant's pilots, and as detailed there, when the question is not on what specific day the pilots will ostensibly surprise and disrupt the flights, but rather the very phenomenon that must be prepared for and then not be in a state of "lack of control" - literally, Of trying to find a solution from moment to moment. As stated there, "It is clear that one is not expected to fly an unqualified pilot just to take out a flight, for example. Of course, even the ability to find a pilot from moment to moment when several flights are canceled at a given moment is almost impossible. However, as noted, this is not the test, but the test of experience that she did "to the best of her ability". An aircraft that has been discovered to have a technical malfunction or damage to one of its limbs, the box is not only at a given point in time when the malfunction is discovered and how it operates, "to the best of its ability", then the box should be treated narrowly since the capacity is inherently more limited, but how the aircraft will be maintained over time in order to avoid that malfunction and as a result the cancellation of a flight.